By Sarah Fenske
By Danny Wicentowski
By Lindsay Toler
By Danny Wicentowski
By Danny Wicentowski
By Jessica Lussenhop
By Lindsay Toler
By Lindsay Toler
"Are there people who want to ask questions who aren't afraid of being sued?" asked 24th Ward Democratic Committee President John Corbett, the man in charge of the May 26 meeting. "Has it really come to that?"
It appears as though it has. This past April Fool's Day, Bauer, a practicing attorney who lives in Dogtown, filed a $2 million defamation suit against five 24th Ward constituents who've been spearheading a petition drive to have him recalled from office. (Also named as a defendant is 7-Eleven, Inc. Fellow defendant Randy Munton owns a 7-Eleven franchise that includes a service station, and Munton has been an outspoken opponent of Bauer's proposal to have a QuikTrip station open up the street on McCausland.)
Since February the group -- including Munton -- has canvassed the ward, handing out fliers and trying to convince registered voters of an alleged series of profligate back-door land-use maneuvers by Bauer (for more on the saga, see "Passing Gas" and "Doubting Thomas" in the March 24, 2004, and February 23, 2005, issues of the Riverfront Times).
Bauer's lawsuit describes the contents of the canvassers' flier as such: "Bauer gives work only to certain developers and at least twice has sold the property to one in particular for less than what other people (not developers) have offered for the same land.
"One of these sales was property from an estate for which Bauer was Executor and whose owner had requested that 20% of the sale price be donated to St. James Church. Bauer took his developer's offer over one from a resident of the 24th Ward....the accepted offer was at least $25,000.00 less."
On February 25 Bauer went on The Charlie Brennan Show on KMOX (1120 AM) and referred to his adversaries as "dissident crazies." He makes no apologies for the on-air potshot.
"I didn't weigh any political pros and cons," Bauer maintains. "I've been libeled, and I filed a lawsuit. And that lawsuit will continue to conclusion. The big factor here is 7-Eleven doesn't want a QuikTrip to go in. It's a commercial war."
Courtroom proceedings are expected to begin by month's end, according to Bill Moench, the St. Louis attorney representing Frances Bourisaw, a Clifton Heights shopkeeper. Bourisaw has filed a counterclaim against Bauer that seeks damages from the alderman for frivolously "acting under color of state law to silence people who oppose him."
Brian Wahby, a Compton Heights resident who chairs the city's central Democratic organization, confesses to being startled by Bauer's temerity, though he adds a disclaimer of sorts.
"Public officials are not public property," contends Wahby, who also serves as a Seventh Ward committeeman. "They're individuals who've made a lot of sacrifices to do their jobs. So I tend to say, 'Give these folks a break.'
"But public officials shouldn't overreach their bounds and intimidate the people they're elected to represent," he continues. "It just shocked me that an elected official referred to his constituents the way [Bauer] did. And I find it incredible that there are cases being filed against voters based on their opinions as they relate to an elected official."
The operative word here is "opinion." Bourisaw and her co-defendants fully admit circulating the flier with the section that Bauer claims to be "replete with other allegations that are untrue and scurrilous in character and actionable at law."
But what Bauer views as libelous, Bourisaw and her attorney see as "expressions of opinion, and thus not actionable at law." And based on the precedent set by a prominent local ruling -- involving none other than Bauer himself as defendant -- expressions of opinion cannot be equated with defamation.
In the weeks leading up to the August 1994 Democratic primary election for state representative in Missouri's 65th District, candidate Bauer faced a bitter struggle against longtime Hill powerbroker Tony Ribaudo (Bauer won the seat in '96 after Ribaudo retired).
Bauer proceeded to deploy a series of attack ads and campaign literature, referring to the incumbent as a "rascal" and accusing him of running as a stalking-horse for Freeman Bosley Jr. in the 1993 mayoral election so that Bosley would grant a riverboat gambling project to Ribaudo's developer buddy. Ribaudo narrowly edged out Bauer in the primary and held onto his seat in the general election, but he remained sufficiently incensed to file a defamation action against Bauer in Circuit Court almost two years later.
On May 29, 1997, the city court sided with Bauer, but with the help of private counselor (now Circuit Clerk) Mariano Favazza, Ribaudo appealed to Missouri's Eastern District Court of Appeals. The Appellate Court upheld the lower court's ruling, stating that "broad, unfocused, wholly subjective comments that do not suggest to the ordinary reader that a plaintiff committed a crime are not actionable."
Says attorney Bill Moench: "At the end of it all, Ribaudo sued Bauer for defamation because Bauer used some words that were, in my opinion, worse than the words he's claiming the people he's suing have used. Bauer moved to dismiss the case and got it thrown out. So he knows this is a frivolous lawsuit, and that's my proof of it."
Bauer declined to comment on whether his triumph over Ribaudo might benefit Moench and company during the current litigious go-round. But he was quite willing to chat about the recall drive, whose outcome, Bourisaw concedes, could be a nail-biter. (On June 13 Bourisaw reported that canvassers had reached or were very near the required threshold of 1,705 24th Ward voters' signatures. The canvassers plan to collect 200 more signatures by the June 24 deadline in order to pad the total and guard against the inevitability of duplicates and invalids.)
Bauer's not too worried. "Even if they get the signatures, I don't think the recall is going to gain traction among normal voters," he says. "I will defeat the recall effort easily and handily because it is an effort that is not broad-based. It's an effort that is being pushed by a limited number of special interests."
Even if he's right, Bauer certainly didn't help his cause by refusing to meet with 24th Ward Democratic leadership prior to their June 9 vote to support the recall petition by a margin of 28 to 14. President John Corbett said he offered to meet with Bauer "any time at all" between the aforementioned May 26 meeting and June 9.
"He wouldn't meet with us," says Corbett, the popular runner-up to Bauer in the '96 legislative race and onetime president of the State Council of Firefighters, who has acknowledged that he would be interested in running for Bauer's seat in a special election, should the process get that far. "Tom's statement was, 'It's not convenient for my lawyer to meet at that time.' He couldn't meet any night at any time? If Tom would drop his lawsuit, maybe they'd drop the petition, but he wouldn't even meet with us. So we didn't really have a choice in the matter."
Bauer claims such negotiations would have been superfluous and ultimately pointless.
"I refused because I'd gone to their [May 26] meeting and answered questions for an hour and a half, and that was sufficient," says Bauer. "Their complaints about me are pretextual. They had already determined to be for recall. This is not about me; it's really about the desire of John Corbett or [24th Ward Committeeman] Bill Waterhouse to be named as the Democratic nominee to replace me."
At the May 26 meeting, Bauer's supporters circulated a glowing list of the alderman's accomplishments and reasons to maintain the status quo. Second-to-last on the list: "If you lose Tom Bauer, you will lose everything."
But as Corbett and Bourisaw might argue: One's man loss is another man's gain.